UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Senior Airman ADAM D. PARKER

United States Air Force

ACM 38384

____ M.J. ____

15 October 2014

Sentence adjudged 9 April 2013 by GCM convened at Minot Air Force 

Base, North Dakota. Military Judge: Grant L. Kratz (sitting alone).

Approved Sentence: Dishonorable discharge, confinement for life, and 

reduction to E-1.

Appellate Counsel for the Appellant: Captain Thomas A. Smith.

Appellate Counsel for the United States: Lieutenant Colonel Steven J. 

Grocki and Gerald R. Bruce, Esquire.

Before

MITCHELL, WEBER, and CONTOVEROS

Appellate Military Judges

OPINION OF THE COURT

This opinion is subject to editorial correction before final publication.

WEBER, Judge:

The appellant providently pled guilty to rape of a child, aggravated sexual contact 

with a child, aggravated sexual abuse of a child, two specifications of indecent liberties 

with a child, two specifications of sodomy with a child, and two specifications of 

possession of child pornography, in violation of Articles 120, 125, and 134, UCMJ, 
2 ACM 38384

10 U.S.C. §§ 920, 925, 934.

1

The adjudged and approved sentence consisted of a 

dishonorable discharge, confinement for life, and reduction to E-1.

The appellant alleges: (1) the sodomy specifications are multiplicious of the 

indecent liberties specifications and (2) his sentence is inappropriately severe. We also 

sua sponte discuss one issue with the post-trial processing of this case. 

Background

In late September 2012, the appellant was in the midst of an internet-facilitated 

conversation with his wife while he was deployed to Qatar. The appellant’s wife wanted 

their 3- and 4-year-old daughters to speak with the appellant. However, the younger of 

the daughters refused to do so and told her mother she did not want her father to come 

home. The girls then revealed the appellant had engaged in various sexual acts with 

them, including placing his penis in their mouths. When the appellant’s wife confronted 

the appellant via internet messages, he admitted to engaging in certain sexual acts with 

the girls.

The appellant’s wife promptly reported this incident, and Air Force Office of 

Special Investigations agents interviewed the appellant in Qatar. He first denied 

committing any sexual acts with the children but later admitted to placing his penis into 

his daughters’ mouths five times each, mostly while they were blindfolded. He also 

eventually admitted to committing other sexual activity with them. In addition, the 

appellant told agents he molested his nieces in nearly identical ways years earlier, before 

he joined the Air Force. The appellant also admitted to downloading and viewing child 

pornography, a confession later corroborated by lawful searches of his computer media 

devices from Qatar and the family’s home at Minot Air Force Base.

Multiplicity

Among the matters to which the appellant pled guilty were two specifications of 

indecent liberties with a child by exposing his penis to each of the two girls in their 

physical presence, and two specifications of sodomy with a child by placing his penis 

into the mouth of each child on divers occasions. The appellant did not raise any 

multiplicity issue regarding these charges and specifications at trial, but on appeal, he 

alleges the sodomy specifications are multiplicious of the indecent liberties specifications 

because both relate to the same misconduct. 

 

1 The Article 120, UCMJ, 10 U.S.C. § 920, offenses were charged under that version of the code applicable to 

offenses committed during the period of 1 October 2007 through 27 June 2012. See 10 U.S.C. § 920 (2006) 

(amended by National Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163, 119 Stat. 3136); 

Manual for Courts-Martial, United States, Punitive Articles Applicable to Sexual Offenses Committed During the 

Period 1 October 2007 through 27 June 2012, App. 28 (2012 ed.).
3 ACM 38384

The military judge noted a possible issue as he questioned the appellant about the 

first of the two indecent liberties specifications. The military judge questioned whether 

the appellant’s plea was provident because the appellant stated his daughter generally did 

not see his penis when he exposed it, and his daughter would not have known he exposed 

it had he not placed his penis in her mouth. Trial counsel asserted the plea was provident, 

reasoning that (1) the child was able to “perceive” his exposed penis because he placed it 

in her mouth; and (2) the appellant “exposed” his penis even though the child was

blindfolded, analogizing that a person who exposes himself by opening a trench coat is 

guilty of indecent liberties even if the victim does not actually look at the exposed areas. 

Trial defense counsel then also affirmatively asserted the plea was provident, agreeing 

with both of trial counsel’s rationales. The military judge went on to question the 

appellant regarding the other indecent liberty specification where he engaged in 

essentially the same behavior with his other daughter. Trial defense counsel raised no 

concerns regarding the providence of the second indecent liberties specification, and the 

military judge accepted the appellant’s guilty pleas on both.

The appellant contends the sodomy specifications are lesser included offenses of 

the indecent liberties specifications and are therefore multiplicious. Relatedly, he asserts 

the two offenses are facially duplicative in that both involved the same act; namely, 

placing his penis in the children’s mouths. The appellant alleges that under the facts of 

this case, the sodomy specifications did not require proof of a fact not required by the 

indecent liberties specifications because the appellant blindfolded the children, and the 

only way in which he “exposed” his penis (thus constituting indecent liberties) was by 

inserting it into the children’s mouths (thus constituting sodomy). 

This court normally reviews multiplicity claims de novo. See United States v. 

Anderson, 68 M.J. 378, 385 (C.A.A.F. 2010). However, an unconditional guilty plea 

forfeits2any issues of multiplicity unless the specifications are “facially duplicative.” 

United States v. Campbell, 68 M.J. 217, 219–20 (C.A.A.F. 2009); see also United States 

v. Gladue, 67 M.J. 311, 314 (C.A.A.F. 2009) (distinguishing forfeiture from waiver of 

multiplicity claims). Whether the specifications are facially duplicative, i.e., factually the 

same, is a question of law reviewed de novo. United States v. Pauling, 60 M.J. 91, 94 

(C.A.A.F. 2004). Specifications are not facially duplicative if each requires proof of a 

fact not required to prove the others. Campbell, 68 M.J. at 220. In addition to issues of 

forfeiture, claims of multiplicity may be expressly waived, relinquishing the right to raise 

 

2 Our superior court’s decision in United States v. Campbell, 68 M.J. 217, 219–20 (C.A.A.F. 2009) stated that the 

appellant “waived” his ability to raise a multiplicity issue on appeal. However, the court’s decision in United States 

v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) recognizes that military courts had failed to “consistently distinguish 

between the terms ‘waiver’ and ‘forfeiture’” and held that a claim of multiplicity was only waived by the appellant’s 

unconditional guilty plea because the appellant agreed to waive all waivable motions in a pretrial agreement. 

Following Gladue, the term “forfeiture” should generally characterize the effect of an unconditional guilty plea on 

multiplicity claims, absent some affirmative waiver. See United States v. St. John ̧ 72 M.J. 685, 687 n.1 (Army Ct. 

Crim. App. 2013) (“We interpret [Campbell and related cases] to mean that an unconditional guilty plea, without an 

affirmative waiver, results in a forfeiture of multiplicity issues absent plain error.”).
4 ACM 38384

the issue on appeal—even for facially duplicative specifications—through an intentional 

relinquishment or abandonment of a known right. Gladue, 67 M.J. at 313–14; 

United States v. Lloyd, 46 M.J. 19, 23 (C.A.A.F. 1997).

“The prohibition against multiplicity is necessary to ensure compliance with the 

constitutional and statutory restrictions against Double Jeopardy.” United States v. 

Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012) (quoting United States v. Quiroz, 55 M.J. 334, 

337 (C.A.A.F. 2001)). Accordingly, an accused may not be convicted and punished for 

two offenses where one is necessarily included in the other, absent congressional intent to 

permit separate punishments. See United States v. Teters, 37 M.J. 370, 376 (C.M.A. 

1993). The Supreme Court has laid out a “separate elements test” for analyzing 

multiplicity issues: “The applicable rule is that, where the same act or transaction 

constitutes a violation of two distinct statutory provisions, the test to be applied to 

determine whether there are two offenses or only one, is whether each provision requires 

proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 

304 (1932); see also United States v. Roderick, 62 M.J. 425, 432 (C.A.A.F. 2006). 

Accordingly, multiple convictions are permitted if the two criminal allegations each have 

at least one separate statutory element from each other.

The two specifications of Article 120, UCMJ, Indecent Liberties with a Child, 

contain the following elements when considered together:

(a) The accused committed certain acts, to wit: exposing his penis;

(b) The acts were indecent;

(c) The accused committed the acts in the physical presence of his children;

(d) The accused committed the acts with the intent to gratify his sexual 

desires; and 

(e) At the time, each of the children was under 16 years of age.

See Manual for Courts-Martial, United States (MCM), Part IV, ¶ 45.b.(10) (2008 ed.). 

The two specifications of Article 125, UCMJ, Sodomy, contain the following 

elements when considered together:

(a) The accused engaged in unnatural carnal copulation with his children by 

placing his penis in their mouths; and

(b) At the time, each of the children was under 12 years of age.

See MCM, Part IV, ¶ 51.b. (2008 ed.).

The appellant affirmatively waived his right at trial to raise this issue on appeal. 

“Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely 

assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known 
5 ACM 38384

right.’” United States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 

304 U.S. 458, 464 (1938)). Trial defense counsel plainly knew they had the right to raise 

a multiplicity issue if they so chose. In fact, defense counsel had just successfully moved 

to dismiss a separate specification on multiplicity grounds.3 Despite this recent encounter 

with the law of multiplicity, defense counsel affirmatively elected not to raise any issue

with the appellant’s plea to indecent liberties, even when the military judge raised the 

issue about whether the appellant was guilty of indecent liberties solely because he 

inserted his penis in the children’s mouths. The military judge gave the defense an 

opportunity to contest the factual basis for the plea to indecent liberties, and the defense 

affirmatively asked the military judge to uphold the plea, in part reasoning that the 

sodomy constituted the necessary exposure for the crime of indecent liberties. 

See United States v. Caulfield, 72 M.J. 690, 692, 695 (C.G. Ct. Crim. App. 2011) (finding 

waiver rather than forfeiture of multiplicity issue where defense counsel only requested 

relief based on unreasonable multiplication of charges, and concluding “the military 

judge did not err and did not abuse his discretion in granting Appellant exactly what he 

requested”). Defense counsel’s actions in this case went beyond merely failing to raise 

the issue of multiplicity. 

Even assuming this issue was forfeited rather than waived, we hold the military 

judge committed no plain error by failing to sua sponte find the specifications 

multiplicious. Both sets of specifications contain at least one separate statutory element 

from the other. The indecent liberties specifications required proof that the appellant 

committed the acts with the intent to gratify his sexual desires, a requirement not 

contained within the sodomy article. The sodomy specifications required proof that the 

appellant engaged in unnatural carnal copulation with his children by placing his penis in 

their mouths. Indecent liberties contains no requirement to prove physical contact. 

MCM, Part IV, ¶ 45.a.(t)(11) (2008 ed.); United States v. Scott, 21 M.J. 345, 348 (C.M.A. 

1986). The two articles therefore each contain distinct criminal elements. 4

In addition, we find the two sets of specifications are not facially duplicative. The 

appellant committed the crime of indecent liberties with a child the moment he exposed 

his penis in their presence, even though he blindfolded them most, but not all,

5

of these 

times. Regardless of whether the girls actually perceived that the appellant exposed his 

penis before he placed it in their mouths, the crime of indecent liberties with a child only 

 

3 Trial defense counsel successfully moved to dismiss a specification alleging receipt of child pornography on the 

grounds that it was multiplicious with a specification alleging possession of child pornography. The military judge 

granted the defense motion just 26 pages before he raised the issue that forms this assignment of error.

4

In addition, the sodomy specifications required proof that the children were under the age of 12 years while the 

indecent liberties specifications required proof that they were under the age of 16 years. See United States v. Bell, 

38 M.J. 523, 524 n.1 (A.C.M.R. 1993) (noting carnal knowledge was not multiplicious with rape because carnal 

knowledge required proof that the victim had not attained the age of 16 years, an element not required for the 

offense of rape). 

5 The appellant admitted in the providence inquiry that he exposed his penis to the younger child at least once when 

she was not blindfolded.
6 ACM 38384

requires proof that the appellant engaged in indecent conduct with them. See MCM, 

Part IV, ¶ 45.a.(t)(11) (2008 ed.). “Indecent conduct” means “that form of immorality 

relating to sexual impurity that is grossly vulgar, obscene, and repugnant to common 

propriety, and tends to excite sexual desire or deprave morals with respect to sexual 

relations.” MCM, Part IV, ¶ 45.a.(t)(12) (2008 ed.). We have no difficulty concluding, 

consistent with the position asserted by both trial and defense counsel in response to the 

military judge’s questions, that the appellant engaged in indecent conduct simply by 

blindfolding the girls and exposing his penis in their presence in order to arouse his 

depraved sexual desires. Under a plain error analysis, we find the appellant’s convictions

for the two sets of specifications are based on different aspects of his criminal conduct. It 

is possible for the appellant to have committed the offense of indecent liberties with a 

child without having committed the offense of sodomy, and the reverse is also true. 

Cf. Schmuck v. United States, 489 U.S. 705, 719 (1989) (discussing lesser included 

offenses and requirement that evidence proving greater offense must prove elements of 

lesser included offense). This assignment of error provides no basis for relief.

Sentence Appropriateness

The appellant asserts his sentence to confinement for life is inappropriately severe. 

His argument is partially based on citations to three other courts-martial where a military 

member was convicted of murdering a child but received lesser sentences. The appellant 

acknowledges these other cases are not closely related to his own but, nonetheless, asks 

this court to compare the sentences in these cases to his for the purpose of relative 

uniformity. See United States v. Wacha, 55 M.J. 266, 267 (C.A.A.F. 2001) (explaining 

that a Court of Criminal Appeals may, at its discretion, consider and compare other

court-martial sentences when reviewing a case for sentence appropriateness and relative 

uniformity). He also notes matters such as his plea of guilty, his expressions of remorse 

in his unsworn statement, the testimony on cross-examination of the psychologist 

indicating the appellant was somewhat treatable, and the testimony of his wife on 

cross-examination indicating some desire to provide the option for her daughters to meet 

the appellant when they become adults. In a footnote, the appellant also invites this 

court to consider the effects of sex offender registration in our sentence appropriateness 

analysis.

This court reviews sentence appropriateness de novo. United States v. Lane, 

64 M.J. 1, 2 (C.A.A.F. 2006). We “may affirm only such findings of guilty and the 

sentence or such part or amount of the sentence, as [we find] correct in law and fact and 

determine[], on the basis of the entire record, should be approved.” Article 66(c), UCMJ, 

10 U.S.C. § 866(c). “We assess sentence appropriateness by considering the particular 

appellant, the nature and seriousness of the offenses, the appellant’s record of service, 

and all matters contained in the record of trial.” United States v. Bare, 63 M.J. 707, 714 

(A.F. Ct. Crim. App. 2006). See also United States v. Healy, 26 M.J. 394, 395–96 

(C.M.A. 1988); United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982). Although we 
7 ACM 38384

are accorded great discretion in determining whether a particular sentence is appropriate, 

we are not authorized to engage in exercises of clemency. United States v. Nerad, 

69 M.J. 138, 146 (C.A.A.F. 2010).

We have reviewed and considered the entire record of trial, including the 

appellant’s arguments on appeal, the particular appellant, the nature and seriousness of 

the offenses, and the appellant’s record of service. We have also considered the cases the 

appellant cites as part of our overall assessment of the range of punishments typically 

meted out in courts-martial. While the sentence to confinement for life is severe, it is not 

inappropriately so. The appellant repeatedly violated his own young daughters for his 

sexual pleasure. He also intentionally sought out, possessed, and viewed child 

pornography, using search terms such as “daughter rape.” We acknowledge the appellant 

pled guilty, but the mitigating value of this plea is tempered by the fact that the evidence 

against him was overwhelming. The appellant’s depraved actions toward his toddler 

daughters will undoubtedly have lifelong effects on them and the appellant’s entire 

family, as the Government’s expert testified. We see no reason why the appellant should 

not similarly feel the effects of his crimes for the remainder of his life. Having 

considered the entire record of trial, including the appellant’s request for recognition of 

the effects of sex offender registration,6 we find the appellant’s sentence is appropriate.

Staff Judge Advocate’s Recommendation

The personal data sheet the Government introduced at trial listed no combat or 

overseas service by the appellant. The appellant did not object to admission of this 

document. The staff judge advocate (SJA) attached a similar data sheet with his 

recommendation, again omitting any mention of combat or overseas service by the 

appellant. The clemency submissions by the appellant and his defense counsel did not 

allege any error in the SJA’s characterization of the appellant’s service. Nevertheless, the 

personal data sheet is plainly erroneous because the appellant was deployed to Qatar at 

the time his crimes were discovered. In addition, his enlisted performance report for the 

period ending 7 August 2011 references an earlier 180-day deployment the appellant 

completed at Al Dhafra Air Base in the United Arab Emirates.

Proper completion of post-trial processing is a question of law, which this court 

reviews de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim. App. 2004) 

(citing United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)). Failure to timely comment 

on matters in the staff judge advocate’s recommendation, or matters attached to the 

recommendation, forfeits any later claim of error in the absence of plain error. Rule for 

 

6 We do not specifically hold that the consequences of sex offender registration are a matter this court must consider 

in its sentence appropriateness determination. We merely elected to give this matter appropriate weight in this case, 

recognizing both our broad and highly discretionary authority under Article 66(c), UCMJ, 10 U.S.C. § 866(c), to 

review sentences and the nature of sex offender registration as a collateral consequence. Cf. United States v. 

Talkington, 73 M.J. 212, 217 (C.A.A.F. 2014). 
8 ACM 38384

Courts-Martial 1106(f)(6); United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005). 

“To prevail under a plain error analysis, [the appellant bears the burden of showing] that: 

‘(1) there was an error; (2) it was plain or obvious; and (3) the error materially prejudiced 

a substantial right.’” Scalo, 60 M.J. at 436 (quoting Kho, 54 M.J. at 65). Although the 

threshold for establishing prejudice in this context is low, the appellant must nonetheless 

make at least some “colorable showing of possible prejudice in terms of how the 

[perceived error] potentially affected [his] opportunity for clemency.” Id. at 437.

The SJA erred in omitting any mention of the appellant’s overseas or combat 

service. Although the Rules for Courts-Martial do not explicitly require mention of an 

accused’s overseas or combat service,7 where a summary of the accused’s service record 

is prepared, that summary must be accurate. This error was plain and obvious, as even a 

cursory review of the record would reveal the fact that the appellant deployed overseas. 

However, we find no material prejudice caused by the error. One of the 

specifications of possession of child pornography alleges that the appellant possessed the 

illegal material “at or near Al-Udeid Air Base, Qatar.” The language of this specification 

was provided to the convening authority in clemency. In addition, we see no reasonable 

possibility that the appellant’s service in Qatar would have persuaded the convening 

authority to grant clemency, particularly when he possessed child pornography there and 

his crimes were discovered there, apparently necessitating a curtailment of his 

deployment. We see no indication that the convening authority was notified of the 

appellant’s earlier deployment to Al Dhafra. Under different facts, we might find that 

this failure potentially affected the appellant’s opportunity for clemency. However, the 

appellant’s crimes were so horrific that we see no reasonable possibility that the 

appellant’s service at Al Dhafra would have convinced the convening authority to grant 

relief. We note that the appellant’s overseas or combat service was not so notable to 

cause him to mention it in his clemency submission or in his sentencing case at trial. In 

fact, the appellant made no effort at trial or in clemency to stress his military service 

record, submitting zero decorations, certificates, character letters, awards, thank you 

letters, or similar documents at either stage. The summary of the appellant’s service at 

Al Dhafra in his enlisted performance report also gives no indication that his service 

during his deployment was particularly notable, apart from the fact that all combat 

service is noteworthy.

 

7 Rule for Courts-Martial 1106 previously required the staff judge advocate’s recommendation to include, inter alia, 

“[a] summary of the accused’s service record, to include length and character of service, awards and decorations 

received, and any records of nonjudicial punishment and previous convictions.” Manual for Courts-Martial, 

United States, Part II, Rule for Courts-Martial 1106(d)(3)(C) (2008 ed.). The rule no longer includes this 

requirement. See Analysis of Rules for Courts-Martial, Manual for Courts-Martial, United States, A21-88 (2012 

ed.). However, Air Force Instruction 51-201, Administration of Military Justice, Fig. 3.7 (6 June 2013), states that 

the personal data sheet should list an accused’s overseas service and combat service. 
9 ACM 38384

The Government would be well-advised to find no solace in our resolution of this 

obvious error. The Government’s neglectful post-trial processing in a significant case 

involving confinement for life created an issue where none should have existed. Under 

different facts, it might well have led to an order for new post-trial processing or even 

sentencing relief by this court. We take this opportunity in this published opinion to 

remind staff judge advocates of a point we have pressed before:

We caution SJAs to take no comfort from this holding. 

Because the threshold for showing prejudice is so low, it is 

the rare case where substantial errors in the SJAR, or 

post-trial process in general, do not require return of the case 

for further processing. . . . For that reason alone, it behooves 

SJAs to pay attention to what they are sending to a convening 

authority and take the time to get it right the first time. More 

importantly, however, the integrity of our military justice 

system demands careful attention in each and every case. 

While any given court-martial may seem routine to a legal 

office with a busy docket, rest assured it is not routine to the 

accused. With rare exception, it will be the single most 

important event in that military member’s life. Nor is it 

routine to the members of the accused’s unit, or to the friends, 

family members, or victims watching carefully to see that 

justice is served. Slip-shod treatment of the court-martial 

process, whether at the pre-trial, trial, or post-trial stage, 

cannot help but undermine faith in the system itself, making it 

less effective overall as a tool for maintaining military 

discipline. If a military member’s offenses are deemed 

serious enough to warrant court-martial, they are serious 

enough to demand the time needed to carefully and correctly 

shepherd each aspect of the case to conclusion. 

. . . Unfortunately, that did not happen here. 

United States v. Lavoie, ACM S31453 (recon), unpub. op. at 4 (A.F. Ct. Crim. App. 

21 January 2009).

Conclusion

The approved findings and sentence are correct in law and fact, and no error 

materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a) 

and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). 
10 ACM 38384

Accordingly, the approved findings and sentence are AFFIRMED.

FOR THE COURT

STEVEN LUCAS

Clerk of the Court